Denver Post

Kobe judge out of bounds

Wednesday, October 22, 2003 - When Eagle County Judge Frederick Gannett found probable cause to try Lakers basketball star Kobe Bryant on rape charges, he should have quit while he was ahead.

Instead, Gannett issued an eight-page order that all but assures him a place in the history of American jurisprudence - as a footnote on conduct to be avoided. Gannett, whom we criticized for failing to keep control of his courtroom during the preliminary hearing, seems to have contracted a severe case of Judge Ito Syndrome, named after the Superior Court judge who allowed the 1996 O.J. Simpson murder trial to become a media circus.

In his order, issued Monday, Gannett took it upon himself to pass judgment on the strength of the prosecution's evidence even though under Colorado law, the standard for finding probable cause is quite low.

"Almost all of the evidence introduced at the preliminary hearing permits multiple inferences which, when viewed either independently or collectively, and upon reasonable inference, do not support a finding of probable cause," he wrote, adding he wouldn't have made such a finding except that Colorado law requires it. He just may have poisoned the Bryant case, which will be tried in district court.

Ultimately, juries who have heard all the evidence and testimony assess the veracity of witnesses and strength or weakness of a criminal case.

Former prosecutor and Denver District Court Judge Connie Peterson said Gannett went "far beyond the parameters" of what he had to do. "This is adding more fuel to the fires of speculation whether it's likely that he did not commit the crime. All (the judge) needed to do was say that the court finds there was probable cause that the crime was committed as charged and that the defendant committed the crime."

It's risky for prosecutors to present too much evidence at a preliminary hearing, Peterson noted. "What the district attorney does is put on just enough evidence to meet the burden of probable cause," she said. The court must review the DA's evidence in the light most favorable to the prosecution. "You don't weigh evidence; you don't judge credibility."

Longtime Denver prosecutor Karen Steinhauser, now a visiting law professor at the University of Denver College of Law, slammed commentators who say they're surprised that Bryant was even charged. "It's irresponsible for people to start making judgments on what's going to happen in this case," Steinhauser said. "That is what poisons the jury pool," she said. Except for the fact that it involves a celebrity, the case is like "85 percent of the sexual assault cases filed," she said.

We fear that Gannett, who wrote what has to be the "War and Peace" of probable-cause findings in comparison with the usual terse three- or four-sentence orders, may have been swayed by the swarm of remote broadcast trucks that rolled into Eagle.

He seems to have forgotten that juries are the ultimate triers and finders of fact.